The Supreme Court of Vermont Law Blog: An on-going conversation about the practice of law in Vermont, featuring summaries of Vermont Supreme Court decisions, a dollop of lampooning, legal analysis, and a charming aggregation of creative thought.

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Wednesday, December 5, 2012

Somebody Else’s Mess

Petitioner was originally convicted of murder in 1995. He lost his appeal in 2001 and filed a
Post-Conviction Relief Petition that same year.
Eleven years later, he appears before the SCOV trying to clarify the preliminary
issue of securing counsel to review, draft, and litigate his petition.

Think of it this way, 92% of PCR cases are resolved within 3
years of their filings. The remaining 8%
are finished shortly thereafter.
Petitioners’ case has continued nearly four times as long, and he has
not passed Go. Hell, he has not gotten
past Baltic Avenue. As the concurrence
notes, Petitioner likely has the oldest pending civil case in the entire state.

On top of that, the reason for the current appeal is that
after all these years, the Defender General’s Office has determined that
Petitioner lacks any legally sufficient claim and no longer wants to represent
him in court. Petitioner objects.

So what is going on here?

Let’s start with the basics.
Post-Conviction Relief or PCR as it more colloquially known is the right
that every individual convicted in the criminal system has to request relief
for constitutional or procedural flaws in his or her trial. These include claims of ineffective
assistance of counsel, new evidence, violations of constitutional rights (most
often 4th Amendment claims), and prosecutorial misconduct.

Because Petitioner was indigent, he was eligible for counsel
for his PCR petition from the Defender General’s office. Under the old statute (which was in effect in
2001), Petitioner’s right to counsel was close to absolute—the merit or
frivolity of a petitioner’s claim did not matter. If a petitioner asked for counsel, it was
granted, and a PCR petition usually followed.

In 2004, the Vermont General Assembly changed the law and
limited the right to PCR counsel to only those cases where an appointed
attorney determined that there was a meritorious claim to file. Under the new rules, if an appointed counsel
sees no grounds for a PCR, she will file to withdraw, and the would-be
petitioner has no further right to counsel.

Back to our Petitioner.
It appears that between 2001 and 2009, Petitioner went through a series
of attorneys. In 2003, the Defender
General’s Office stated that Petitioner’s case had some merit, but with the
rotation of attorneys, the case never advanced.
With new counsel in 2008, the case received renewed scrutiny. This newer attorneys came to the conclusion
that Petitioner’s claims lack merit.
Nevertheless, representation, review, and preparation continued until
2009 when the counsel moved to withdraw based on the lack of merits to
Petitioner’s claim.

At that time, the Defender General, citing the 2004 revised
statute, determined that Petitioner was out of luck and on his own as the
Office had no obligation to provide further counsel.

Petitioner appealed, and with the help of another court-appointed
counsel, he made two argues to the SCOV.
First, Petitioner argued that the earlier PCR counsel statute applied
giving him an unlimited right to counsel.
Second, he argued that even if the new statute applied, the Defender
General had waived its right to withdraw by providing representation for the
past 9 years.

The SCOV majority favors the first argument. It rules that the older statute applies
because Petitioner filed his PCR action prior to 2004. This ruling leads to a minor rhetorical scuffle
with the brief from the Defender General’s Office. The Defender General argued that because the PCR
counsel law changed in July 2004 before a seminal SCOV ruling on the old
statute took effect, the SCOV ruling, upon which the majority now relies, was
mooted and carries no precedent.

The SCOV flicks this argument away by noting that the timing
had nothing to do with the effect of the decision as it interpreted an older
statute for older circumstance, which was not altered by a succeeding change in
the law.

Two points for creativity, but the game goes to Petitioner
as the matter is reversed and remanded with instructions to press the petition
forward and to make sure Petitioner has counsel.

Finally, there is the matter of the concurrence. Justice Dooley concurs separately and in detail
specifying the faults and shortcomings of this case and pointing out the
systemic problems that this case illustrates.
For the concurrence, it would reverse but on the grounds of waiver and
not merely statutory interpretation.

This is part of the concurrence’s larger point. The Defender General had this case for 9
years, expressed multiple opinions about the merits of the claims but has never
moved the case forward in a meaningful manner.
Claiming that there is no basis for the PCR action requires greater
scrutiny and some meaningful disclosure by the Defender General’s Office as to
nature of its review and conclusions.

Part of the concurrence’s point is to make clear that this
case is only the worst of a problematic lot.
The concurrence takes sharp issue with the Defender General’s position
that its Office alone has the power to review and decide the merits of a PCR
claim and owes the court no obligation to disclose its methods or its findings
when seeking to withdraw. If this smells
like a turf battle to you, then add two more points to the score for a keen
nose.

In the end, the concurrence admits that it is two additional
votes shy of making anything more than a point on the record, but it strongly
suggests that the next case may well bring these issues more directly before
the SCOV. Until that day, the
concurrence must be satisfied with outlining its issues and biding its time.

Until then, Petitioner has reason, for perhaps the first
time in 11 years to be hopeful. He gets
a victory, and his case moves back to the trial court, where there will
presumably be an attorney waiting for him to raise his arguments, whatever
those might be.